Adjudication No. 265 (January 1986) [1986] APC 1

ADJUDICATION No. 265 (January 1986)

Ms Mary Gaudron, the Solicitor-General for NSW, has complained about statements in an article by Wendy Bacon in The National Times of August 16 - 22, 1985, concerning a High Court appeal by Mr Justice Murphy in which Ms Gaudron appeared for the State of NSW.

The article dealt with a number of ironies in the case. One was that of a restrictive interpretation of the Constitution being argued on behalf of Mr Justice Murphy; another was the support of that argument by Ms Gaudron on behalf of NSW, for which State the success of the argument offered no obvious advantage. The article stated that the NSW Attorney-General had intervened in the case on the advice of Ms Gaudron, and proceeded to comment on her association with Mr Justice Murphy, and her advice to the NSW Government on related allegations of the Chief Magistrate, Mr Briese, against Judge Foord.

It was in the course of these comments that the statements complained of were made. Three of them warrant discussion. The first was that as a junior barrister Ms Gaudron was "a protege of Murphy's". She has supplied details of her career to refute the statement. The National Times on the other hand has supplied details of the information on which the statement was based. In brief, this was that when Attorney-General Justice Murphy was an admirer of the young barrister, and was keen to advance her career by supporting her being briefed to appear for the Commonwealth in the major Equal Pay case, and afterwards her appointment at an early age to the Commonwealth Arbitration Commission.

The term protege is a vague term that can cover many different degrees of relationship. The Council accepts that Ms Bacon used the term in good faith to refer to the situation described. On the other hand the Council can understand that to Ms Gaudron, and to others in the legal profession who see the allocation of briefs and the appointing of judges as the everyday work of an Attorney-General, and who remember the general esteem in which Ms Gaudron was held, these facts fell short of justifying the term protege.

The next statement complained of was that she criticised the credibility of the NSW Chief Magistrate, Mr Briese, in "deciding" that his allegations in relation to District Court judge John Foord "should not be further investigated". Ms Gaudron points out that she did not "decide", she advised. More importantly, her advice was that for a number of reasons no public inquiry should be set up by the NSW Government, but that as the charges the subject of the relevant proceedings concerned offences under the Commonwealth Crimes Act, they were essentially for evaluation by Commonwealth authorities. She advised that the available material be sent to Mr Temby, the Director of Public Prosecutions for the Commonwealth "for his evaluation and for such further action as he considers appropriate".

On the other hand, it is fair to say, as the paper's account sought to emphasise, that Ms Gaudron's advice produced the result that there was no further investigation in NSW, where she held office. Her opinion also contained a very unfavourable assessment of Mr Briese's evidence, which could hardly have encouraged further investigation by Mr Temby.

This leads to consideration of the third statement complained of, namely that Ms Gaudron's opinion "did not help the credibility of Gaudron herself, especially when Foord was later charged and committed for trial on the basis of Briese's evidence". Here Ms Gaudron complains that the statement was unfair to Judge Foord, because it failed to mention that at an earlier time, in August 1984, Mr Temby had declined to prosecute Judge Foord on the basis of Mr Briese's evidence. However, the thrust of the comment was not directed at Judge Foord, and its reference to him was quite accurate. The thrust was directed at Ms Gaudron, and it was a legitimate comment to contrast her assessment of Mr Briese's evidence with the charging and committal of Judge Foord on charges, one of which was based squarely on that evidence.

Looking at the matter generally, Ms Gaudron has pointed to aspects of the statements that could have been elaborated to produce a more accurate and more complete account of matters referred to. But this could have been done without seriously affecting the thrust of the article or the strength of the comments made. The main result would have been a longer article. It is in the nature of journalistic writing that space is at a premium. Matters have to be compressed, some facts selected for emphasis at the expense of others, and complex situations briefly summarised- There is an obligation to be accurate and fair, but it is not possible to say everything one would like to say, still less everything that those criticised would like said.

In this and other articles, Ms Bacon and The National Times have sought to probe beneath the surface of important public issues. Inevitably such articles will cause discomfort to some, and may sometimes fall into error of one kind or another. But often a reply from those who disagree will be a more appropriate response than complaint to this Council.

While acknowledging that some of the points made by Ms Gaudron have force, the Council thinks it unfortunate that she did not air them at the time in a letter to the editor. The Council considers that, having discussed the complaints, it does not need to take any further action.